New Mexico considering legislation to mandate use of ‘neutral principles of law’ in church property cases
By Craig M. Kibler, February 15, 2007
ALBUQUERQUE, N.M. – The New Mexico state legislature is considering legislation that would require the use of “neutral principles of law” in cases involving church property rights.
“The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity.”
The State Attorney General’s OfficeThe proposed legislation, Senate Bill 230 introduced by state Sen. Leonard Lee Rawson, R-Las Cruces, asks the legislature to enact two things:
1) That “New Mexico courts shall apply neutral principles of law in resolving church property disputes.”
2) That the “property of a nonprofit corporation organized for religious purposes shall not be deemed to be impressed with an express, implied, statutory or common law trust unless:
- A. “The property was received by the corporation with an express written commitment by resolution of its board of directors to hold that property in trust; or
- B. “The donor of the property expressly imposed a trust, in writing, at the time of the gift or donation.”
The measure was introduced during the first 2007 session of the 48th Legislature. The proposed legislation was referred to the Senate’s Public Affairs Committee, which, on Feb. 2, returned it to the Senate for a second reading. In its report, the Public Affairs Committee, voting 5-0, stated that it “has had it under consideration and reports same with recommendation that it DO PASS” and be referred to the Senate Judiciary Committee, where the measure is tentatively scheduled to be taken up Monday, Feb. 19.
Analyst’s report
In a fiscal impact report accompanying the bill, Legislative Finance Committee analyst Hanika Ortiz wrote:
“Senate Bill 230 enacts an Act that will require courts apply ‘neutral principles of law’ when resolving church property disputes. The bill will also govern the determination as to whether a trust affecting church property has in fact been created during a dispute. This legislation is intended to free civil courts from entanglement in questions of religious doctrine.”
“There will be a minimal administrative cost for statewide update, distribution and documentation of statutory changes.”
“The language dealing with trusts in this bill arises from disputes in which one party asserts an ‘implied trust theory.’ This theory asserts that a local church accepts and holds local church property for the benefit of the entire membership of the hierarchical church and is impliedly bound to hold its church property as a charitable trust for the benefit of the specific religious use in effect at the time it acquired the property.”
The Administrative Office of the Courts, in a response accompanying the bill, states “that requiring New Mexico courts to apply certain principles of law may infringe upon the independent judgment and power of the judiciary. This interference, in the Court’s opinion, is prohibited under the New Mexico Constitution in Article III, Section 1:
“The powers of the government of this state are divided into three distinct branches – the legislative, executive and judicial – and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments, shall exercise any powers properly belonging to either of the others, except as in this constitution otherwise expressly directed or permitted.”
State Attorney General’s Office
The State Attorney General’s Office, however, offered a different viewpoint. In a response accompanying the bill, it states “that the bill adopts the ‘neutral principles of law’ method of resolving property disputes which arise between different factions in a religious organization. The disputes often arise when one faction seeks to break from another and the question of who owns church property leads to litigation in state courts.
“The method adopted in this bill was approved by the United States Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979) and allows a state to use generally applicable neutral principles of state law to resolve church property disputes without violating the United States Constitution. A state need not defer to religious authority in resolving church property disputes. The sources to be used to settle such disputes are the deeds to church property, the articles of incorporation of the local church, the state statutes, and the rules of the general church organization.
“The primary advantages of the neutral principles approach are that it is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity.”
Presbytery opposition
The outgoing executive presbyter of the Presbytery of Sierra Blanca, the Rev. Jon Shannon Webster, opposes the measure. Webster, who will be leaving New Mexico on Feb. 28 to become pastor and head of staff at First Presbyterian Church in Birmingham, Ala., sent an e-mail to ministers in the presbytery stating that the bill “is a very bad thing for our common life as a Christian community, and must be stopped.”
The e-mail, a copy of which was obtained by The Layman Online, goes on to state:
“What this bill aims to do, in short, is involve the NM State Legislature and subsequently NM Courts in overriding church polity to resolve church property disputes. This will necessarily involve the Courts in ruling on church doctrine. It will result in the most flagrant violation of church and state issues (well, except for Utah) that I can imagine. It threatens the Church, is what it does.”
Webster includes a sample letter to state legislators hearing the bill and urges the ministers to “maybe e-mail them the attached letter or something like it.” That letter reads as follows:
“I am writing to oppose the passage of Senate Bill 230, which is now before the Senate Judiciary Committee and ask your support in lobbying to defeat the bill. There are several reasons why this bill should be defeated.
“It unnecessarily involves the State of New Mexico in regulating religion in the majority of the churches in New Mexico. In hierarchical denominations, current law defers in church matters for the settlement of property disputes. The proposed change to New Mexico law will involve State courts in religious disputes, most often forcing these secular courts to interpret religious doctrine.
“This radical change in state law will seriously affect many of our denominations, such as the Episcopalians, Presbyterians, Roman Catholics, Lutherans and United Methodists.
“The State legislature should not get involved in property disputes based on doctrinal issues within the churches and synagogues of the State – for what should be obvious reasons. This legislation would violate the Church Autonomy Doctrine, recently affirmed by the highest New Mexico court, targeting hierarchical churches, and would violate the Free Exercise Clause.
“This is obviously a matter of great concern to our community and I request that additional hearings be scheduled to provide additional time for representatives of our many different denominations to have adequate time to address the committee.”
‘Regulating religion’
In claiming that the proposed legislation would involve the state in “regulating religion in the majority of churches in New Mexico,” Webster ignores the response by the State Attorney General’s Office that church property and doctrine are two different things.
Webster also tries to make the claim, unsupported by civil cases thus far adjudicated, that, “In hierarchical denominations, current law defers in church matters for the settlement of property disputes.” The claim of a “hierarchical denomination” is taken from “The Louisville Papers,” which have come under increasing criticism since they were made public.
‘Church Autonomy Doctrine’
The “Church Autonomy Doctrine,” sometimes called the “ministerial exception,” has not been used in church property disputes, as Webster implies. Instead it almost always has been used in cases involving religious employment disputes – i.e., “employee lawsuits, from laws protecting pensions and providing unemployment benefits, and from laws that give employees the right to form unions to negotiate with their employers,” according to The New York Times.
This was the case in the April 30, 2002, opinion by the U.S. Court of Appeals in Bryce v. Episcopal Church in the Diocese of Colorado, which involved the employment of a minister in a same-sex relationship, as well as the April 4, 2006, New Mexico case, Celnik v. Congregation B’Nai Israel, which involved the dismissal of a rabbi who developed Parkinson’s disease.
Craig M. Kibler is the Director of Publications for the Presbyterian Lay Committee and Executive Editor of The Layman and The Layman Online. He can be reached at cmkibler@layman.org.